Lawsuits, lack of incentives hamstring Endangered Species Act

Few laws have created as much sound and fury and accomplished as little as the Endangered Species Act. At least that’s the thinking of some House and Senate leaders who have oversight authority for the ESA.

While the U.S. Fish and Wildlife Service currently has 1,264 species listed as endangered and in need of protection, only 10 have been recovered or are no longer considered to be threatened since the law was enacted in 1973.

A recovery rate of less than one-tenth of a percent is not much to brag about, according to House Committee on Resources Chairman Richard Pombo, R-Calif., who has vowed to “modernize” the Endangered Species Act by putting a renewed focus on species recovery.

Pombo, Sen. Mike Crapo, R-Idaho, and Rep. Chip Pickering, R-Miss., may have added a few more inches of paper to the volumes on the ESA at a recent hearing in Jackson, Miss. Or they may have laid the groundwork for changes that will help the ESA accomplish what it was intended to do.

“The ESA desperately needs an update and a renewed focus on species recovery,” said Pombo, speaking at the Resources Committee’s field hearing at the Mississippi Museum of Natural Science in Jackson, Miss., April 30. “We’re here to try to figure out what we need to do and can do to modernize the act.”

It was the first field hearing conducted by the committee since Pombo, Crapo and other senators and congressmen announced plans to seek a rewrite of the Endangered Species Act. The committee came to Mississippi at the invitation of Pickering and Gov. Haley Barbour.

Despite all the attention focused on the ESA, success stories for the legislation have been few and far between, according to Pombo.

“The law has fallen victim to unintended consequences, partisan politics and counter-productive lawsuits. These forces have rendered the ESA a broken law that is in desperate need of updating and modernizing after 30 years of failure.

“One of those unintended consequences has been the chilling effect the law has had on normally conservation-minded farmers and landowners. That has made an endangered species the last thing most farmers would want to find on their land.

“I hear it said sometimes that in this atmosphere of excess litigation and no incentives to help with the recovery of species that there’s a SSS policy — shoot, shovel and shut up,” said Pickering. “Instead of having a landowner come forward, wanting to find a way to save a species, most would not admit to having a red-cockaded woodpecker, for example, in their trees.

“The last thing the landowners is going to say is, ‘This is my children’s inheritance, and I would like for you to come lock up my land and take away its value for the next 10 years,’” he said. “This is the wrong way to go about solving the issue before us.”

Pickering, whose Fourth Congressional District in southeast Mississippi is home to the red-cockaded woodpecker, said he believes the new ESA should be modeled along the lines of such programs as the Wildlife Habitat Incentives Program that provides funds to help growers make their land more hospitable to wildlife. “We need to look at cooperative conservation models like the Wetland Reserve Program and WHIP and EQIP (Environmental Quality Incentives Program),” he said. “The Endangered Species Act is more of an adversarial model than a cooperative program.”

Another way to provide incentives for landowners would be the fully fund the Healthy Forest Restoration Act, said James Cummins, executive director of the Mississippi Fish and Wildlife Foundation. “We’re not taking full opportunity of the legislation we have,” said Cummins. “Landowners need encouragement to make the law work the way it was intended.”

“We can’t have success without the cooperation of landowners,” said Crapo, a member of the Senate Environment and Public Works Subcommittee on Fisheries, Wildlife and Water. “Private property owners must be part of the solution.”

Crapo referred to the confirmation of the sighting of an ivory-billed woodpecker in Arkansas two days before the Jackson hearing as an encouraging sign for endangered species recovery efforts. The ivory-billed woodpecker, which had not been seen in 60 years, was thought to be extinct.

“As we see organizations mobilizing the efforts to recover the ivory-billed, it shows the need for a strong recovery program for all endangered species,” he said. “Maybe the work with the ivory-billed woodpecker will be the key to breaking the logjam on the Endangered Species Act.”

Currently, too much of the U.S. Fish and Wildlife Service’s ESA funding is spent defending the agency against lawsuits, witnesses said.

“Litigation has everything tied up,” said J. Randy Bowen, Southern Pine Region director of the Pulp & Paperworkers’ Resource Council. “Organizations like the Sierra Club have much greater resources for filing lawsuits involving endangered species than groups like ours.”

The Pulp & Paperworkers’ Council began in the Pacific Northwest where the spotted owl controversy shut down lumber mills and put thousands of workers out of their jobs, said Bowen. “As time progressed, we realized this loss of jobs would not just stay in the Pacific Northwest.”

Bowen works for a paper mill in Bastrop, La., that is now threatened because of Endangered Species Act listings of species that have stopped timber cutting in parts of Louisiana. “So I’m fighting for my job and for my pension plan,” he told the committee members.

At least three lawsuits involving the endangered species listing for the Alabama sturgeon have been filed against the U.S. Fish and Wildlife Service, said Don Waldon, administrator of the Tennessee-Tombigbee Waterway Development Authority.

“Congress appropriated $1.5 million to support the development of a recovery plan for the sturgeon,” said Waldon. “That led to a voluntary consent agreement that many of us thought was the best plan for the sturgeon. But that agreement evaporated when environmentalists filed lawsuits. As a result, nothing has been done for the fish for the last five years.”

Ray Vaughn, executive director of the Wildlaw environmental group, said his organization has filed lawsuits “when the Fish and Wildlife Service has broken the law,” but that Wildlaw attorneys have spent more time working with developers than against them.

“We have probably filed more ESA lawsuits than any other group in Alabama, but it’s because the Fish and Wildlife Service has refused to follow the law in too many cases,” he said. “It’s our position that the ESA is not broken, it’s just incomplete. Congress has never provided Fish and Wildlife with the funding it needs.”

Vaughn noted he had received numerous e-mails from other environmental groups asking him not to appear before the Resources Committee. “But I care too much about endangered species not to participate,” he noted. “Besides, this is my government, too.”

Some witnesses accused the Fish and Wildlife Service of using “shoddy” science in listing endangered species and preparing maps of critical habitat that the ESA says must be preserved to protect them.

“Currently, too many ESA listings lack a substantial basis in hard scientific data,” said Bowen. “Any revisions to the act should insure that ESA decisions are based on sound science, including peer review of listing and recovery decisions.”

The Tennessee-Tombigbee Waterway’s Waldon said DNA testing by two different scientists has shown there is no genetic difference between the Alabama sturgeon and Mississippi shovelnose fish.

“But portions of Alabama have been declared critical habitat for the sturgeon while no such designation has been made in Mississippi, he noted.